20 November 2019
A new Dutch law on civil servants with huge consequences for cross-border work

ITEM illustrates again the need for proper assessment of border-effects of national legislation

The ITEM Cross-Border Impact Assessment 2019 has been published! The infographic concisely visualises the main results.

From 1st of January 2020, the new Dutch law on the legal status of civil servants could prevent certain employees of Dutch universities – those who live in Belgium or Germany – from working at home. Different from their situation so far, it will matter how much time they work in their office or at home. Hence, the changes could mean that their situation with respect to social security coverage (and possibly pensions) will dramatically change, as will the situation of the employer regarding the payment of these employees’ social contributions. As shown in ITEM’s impact assessment 2019, the consequences of this national piece of legislation for cross-border workers were detected after the law’s adoption with certain uncertainties and ad-hoc investigation of the consequences. The case again illustrates the need for proper assessment of border-effects of national legislation.

With its annual Cross-Border Impact Assessment, the Institute for Transnational and Euregional cross-border cooperation and Mobility / ITEM is precisely doing that: it provides more insight into European and national legislative and policy initiatives. The report is intended as a valuable tool for policy makers at regional, national and European level when taking decisions on legislation and regulations with (additional) effects for (cross-)border regions. In particular, these impact assessments help to identify existing or future cross-border effects. Notably, the results of individual research dossiers contribute to the political debate and may provide constructive input during the legislative process. This article provides an overview of the most important insights generated by the ITEM Cross-Border Impact Assessment 2019.

Six cross-border issues

The ITEM Cross-Border Impact Assessment 2019 contains six dossiers concerning a wide variety of cross-border issues – including specific effects on border regions and/or implications for cross-border cooperation and mobility. This year’s dossiers include three ex-ante assessments on (potentially) upcoming legislation: one at national level (WNRA), two at European level (the proposed Regulation introducing a European Cross-Border Mechanism / ECBM and the new INTERREG Regulation 2021-2027). In another two dossiers, the report explores the ex-post effects of existing legislation, again both at national (the Qualifying Foreign Taxpayer Obligation / “90% rule”) and at European level (the EU Nitrates Directive and manure quotas between NL/DE). Furthermore, the 2019 Cross-Border Impact Assessment also offers a preliminary analysis of the challenges of cross-border data monitoring, putting the need for a structural production of (low regional level) cross-border statistics in the focus.

The 90% rule

As to the principles and objectives of European integration, the ITEM report reveals possible starting points on which cross-border labour mobility could be improved. Firstly, the Dossier on the so-called “90 %-rule” provides an illustrative overview (i.e. in terms of housing and labour mobility) of the in- and outflows of cross-border workers between the Netherlands and its neighbouring countries. It finds no evidence for an effect of the Dutch Qualifying Foreign Taxpayer Obligation on the number of foreign employees in the Netherlands, while stressing the outstanding legal questions in this regard and the elevated administrative burdens for frontier workers.

WNRA repercussions & Manure Fraud

Secondly, the WNRA-Dossier underlines the urgent need for more information and clarification from the Dutch government. It shows how complex the repercussions of a fundamental legislative change at the national level regarding the legal employment status of certain groups of workers can be for cross-border employment situations where work is conducted in two or more countries. Such repercussions are above all encountered in the field of social security (including pensions), dependent on a supranational coordination framework that determines the applicable legislation. Given the virtual absence of a thorough Cross-Border Impact Assessment prior to its adoption, this legislative change can entail sizable financial consequences for affected frontier workers and employers (like universities and academic hospitals), particularly those situated in border regions.

As regards sustainable socio-economic development, European and other countries have recently been beset with protests and demonstrations triggered by government measures as action against climate change. This shows the topicality of this year’s Student Dossier, composed by a group of students participating in the UM Law Faculty’s Honours+ programme. This Dossier provides an ex-post assessment of the European Nitrates Directive from 1991, which sets quotas for the level of nitrates in water and soil, including the use of manure. The analysis focuses on the effects of that directive and manure quotas, examining current practices in cross-border trade of manure and possible fraud at the Dutch-German border and how these complicate the compliance with the respective European environmental standards.

Cross-border cooperation & governance

Last but not least, the theme of cross-border cooperation and the impact on Euregional cohesion are illuminated from various angles. The ECBM-Dossier discusses the merits and potential drawbacks of a new transnational legal instrument to bolster cross-border cooperation. This new mechanism, proposed by the European Commission, is to advance cross-border cooperation projects – for example, on infrastructure development and services of general economic interest – by offering a ‘standard’ procedure for resolving cross-border obstacles. Much potential is seen in the proposed legal leverage to be bestowed on project initiators for expediting the elimination of obstacles that result from diverging national legislations from either side of a border. This might be able to make a real difference for the expedient realisation of cross-border projects.

This is complemented by a preliminary assessment of the new INTERREG Regulation 2021-2027 and its new objective to allocate 15 % of the programme funds to ‘Governance’. This Dossier assesses what ‘Governance’ means to different stakeholders in programme areas in the Benelux. It focuses on the expectations how it may affect programme implementation and change the latter’s scope – especially, with a view to making cross-border cooperation structures more durable. Interestingly, one possible allocation for such targeted funding may be for making cross-border data structurally available, as pleaded in the Dossier on cross-border monitoring. This Dossier problematises how data collection is focused on the national level and it often ends at the border. It investigates the possibilities for enabling the structural production of cross-border statistics, including the establishment of a transnational network for their coordination at EU-level.

Social impact

Knowledge exchange is one of ITEM’s core activities next to scientific research, this includes citizens engagement.  To disseminate the research results and achieve actual societal impact, the ITEM Cross-Border Impact Assessment has been providing the basis for numerous (on-going) follow-up activities (see the Annex). For example, ITEM has been cooperating with partners – notably, the Dutch Social Insurance Bank (SVB) and Team GWO, a public service providing cross-border tax information – to organise information sessions about the impact of the new WNRA-law for concerned (cross-border) workers, their employers and intermediaries. The needs assessment and plea for cross-border data has been debated amongst others at the European Commission’s DG Regio Open Days, while the insights on the new ‘Governance’-objective have been shared and discussed during stakeholder consultations regarding the programme planning for the upcoming period INTERREG 2021-2027.

Since its establishment in 2015, ITEM has published three Cross-Border Impact Assessments. The ITEM Dossier 2019 is the most recent impact assessment carried out by ITEM. The ITEM Cross-Border Impact Assessment brings policy and practice together. Every year, ITEM stakeholders have the opportunity to propose restrictive cross-border issues. The subjects of the Cross-Border Impact Assessment of that year are then submitted to the selection process of the ITEM Cross-Border Impact Assessment Working Group. After completion of the selection process, the selected topics are examined in detail by ITEM researchers.

By the end of 2019, ITEM Stakeholders will again have the opportunity to raise with ITEM the issues that are important to them. The ITEM Cross-Border Impact Assessment Survey will be made available on the ITEM website in December.